Frank E. McNally

The appellant appealed a Licence Appeal Tribunal (LAT) decision denying his claim for catastrophic impairment benefits.

The LAT had found that the appellant's physician, Dr. Ofokansi, provided only a conclusory opinion on the OCF-19 form without supporting analysis or medical data.

The appellant argued the LAT should have considered the evidence of his psychologist, Dr. Reesor.

The Divisional Court dismissed the appeal, holding that section 45 of the Statutory Accident Benefits Schedule requires a catastrophic impairment assessment to be conducted by a physician.

Since the physician's assessment was entirely conclusory and entitled to no weight, the psychologist's evidence alone was insufficient to establish the claim.

The insurer applied to the Licence Appeal Tribunal for repayment of Income Replacement Benefits (IRB) paid to the respondent.

The insurer argued that the respondent received post-accident employment income that was deductible from the IRB, resulting in an overpayment of $1,428.58.

The respondent did not provide written submissions.

The Tribunal proceeded in the respondent's absence and found that the insurer was entitled to the repayment of $1,428.58, plus interest, as the respondent's gross employment income was deductible under the Schedule.

The plaintiff brought a motion to strike the jury notice in her motor vehicle collision action, seeking to proceed to trial before a judge alone due to concerns about potential delays and prejudice (financial and mental health) related to the COVID-19 pandemic.

The court granted leave for the plaintiff to bring the motion but ultimately dismissed it.

The court found that the plaintiff's grounds, such as temporary jury selection bans, were no longer valid as COVID-19 restrictions had been lifted.

The court emphasized the substantive right to a jury trial and determined that the plaintiff's evidence regarding prejudice was insufficient or lacked concrete detail to justify overriding this right.

The court reserved costs to the trial judge and granted both parties leave to bring further motions if the pandemic circumstances change again.

The applicant was injured in a motor vehicle accident and sought funding for psychological treatment.

The respondent denied the claim, arguing the applicant's injuries fell within the Minor Injury Guideline (MIG) limit.

The Tribunal found that the applicant suffered from psychological impairments, including PTSD and depression, which were exacerbated by the accident, justifying his removal from the MIG.

The Tribunal preferred the evidence of the applicant's psychologist over the respondent's expert, who had alleged malingering.

The treatment plan for psychotherapy was deemed reasonable and necessary, and the applicant was awarded the claimed medical benefit with interest.

The applicant sought non-earner benefits following a motor vehicle accident.

The insurer raised a preliminary issue, arguing the applicant was barred from proceeding because the submitted Disability Certificate (OCF-3) indicated he did not suffer a complete inability to carry on a normal life, and was therefore not 'completed' under the Schedule.

The Tribunal found that an OCF-3 is 'completed' if it is filled out, dated, and signed by a regulated healthcare professional, even if it does not support the claim for the specified benefit.

The applicant was permitted to proceed with his application on the merits.

The plaintiffs brought a motion to strike the defendant's jury notice due to trial delays caused by the COVID-19 pandemic.

The plaintiffs argued they would suffer prejudice from the delay itself, the impact on the plaintiff's mental health, and the financial erosion of her claim for economic loss.

The defendant argued the case involved chronic pain and credibility issues best suited for a jury, and that his litigation strategy relied on a jury trial.

The court found the plaintiffs established prejudice due to delay and financial erosion, which outweighed the defendant's broad assertions of prejudice.

The court conditionally struck the jury notice, ordering the trial to proceed before a judge alone on the adjourned date, but allowing for automatic reinstatement of the jury notice if the trial is further adjourned to a time when civil jury trials have resumed.

The respondent insurer requested a reconsideration of a Licence Appeal Tribunal decision that awarded the applicant attendant care benefits for meal preparation and medical benefits for Whole Therapy.

The Vice Chair dismissed the request regarding attendant care, finding the adjudicator properly weighed the evidence and applied the 'but for' causation test.

However, the Vice Chair granted the request regarding the Whole Therapy expenses, finding the adjudicator erred in law by relying on the insurer's previous approval of travel expenses to determine the treatment was reasonable and necessary.

The Vice Chair denied the Whole Therapy expenses because the applicant failed to submit a treatment plan prior to incurring the expenses, contrary to s. 38(2) of the Schedule.

The plaintiffs brought a motion to strike the defendant's jury notice in a motor vehicle accident claim, arguing that the Covid-19 pandemic would indefinitely delay a jury trial.

The court granted leave to bring the motion, finding the pandemic constituted a substantial and unexpected change of circumstances.

However, the court dismissed the motion to strike the jury notice because the parties were not yet ready for trial.

Specifically, the defendant's psychiatric expert had not received all necessary raw data to complete his report, and a pre-trial conference remained outstanding.

The court vacated the upcoming trial dates and directed the matter to a trial management court.

The applicant sought income replacement benefits (IRBs), attendant care benefits, and medical benefits following a motor vehicle accident.

The Tribunal found that the applicant met both the Pre-104 and Post-104 IRB tests due to chronic pain and depression preventing her from returning to her pre-accident employment as a cook, despite her part-time accommodated work at an assisted living residence.

The Tribunal dismissed the claims for attendant care and medical benefits, finding the applicant independent in personal care and no longer in need of the requested assistive devices or occupational therapy.

The applicant was awarded IRBs with deductions for her part-time income, plus interest, but no special award was granted.

The applicant sought income replacement benefits (IRBs), attendant care benefits, and medical benefits following a motor vehicle accident.

The Tribunal found the applicant met both the pre-104 and post-104 week tests for IRBs due to chronic pain and depression, which prevented her from returning to her pre-accident employment as a cook.

However, the Tribunal denied the claims for attendant care and medical benefits, finding the applicant was independent in her personal care and had not utilized previously approved occupational therapy sessions.

The applicant was awarded IRBs subject to deductions for post-accident income, along with applicable interest, but no special award was granted.

The plaintiffs sought an order to dispense with service of a motion record, remove litigation guardians for adult children, and approve a minor's settlement following a motor vehicle accident.

The court dismissed the request to dispense with service due to lack of evidence and outlined several procedural deficiencies regarding the minor plaintiffs reaching the age of majority, the consent documentation, and the form of the draft order.

The substantive aspects of the motion were deferred pending resolution of these procedural issues.

The insurer sought reconsideration of a Licence Appeal Tribunal decision that found the applicant entitled to payment for Lidocaine intravenous injections and a dietician assessment following a motor vehicle accident.

The insurer argued the Tribunal made significant errors of law and fact by misapprehending the 'reasonable and necessary' standard and improperly shifting the burden of proof.

The Vice-Chair dismissed the reconsideration request, finding that the original adjudicator properly considered the evidence, applied the correct legal standards, and made reasonable factual findings based on the medical evidence presented.

The applicant sought attendant care benefits following a motor vehicle accident.

The insurer raised a preliminary issue, arguing the appeal was statute-barred because it was not commenced within two years of a 2012 denial letter.

The Tribunal found the 2012 letter was not a clear and unequivocal denial, as it was contingent on the applicant's status under the Minor Injury Guideline.

A subsequent 2014 letter confirming removal from the guideline reset the limitation period, and the true denial occurred in 2018.

The Tribunal held the appeal was not statute-barred and could proceed.

The applicant sought statutory accident benefits following an alleged incident on a public transit bus.

The insurer denied the claim on the basis that no collision occurred, as required by section 268(1.1) of the Insurance Act.

The Tribunal found that the applicant's testimony of feeling a bump while half asleep was insufficient to prove a collision occurred, especially given the lack of an incident report from the transit service and a three-month delay in reporting.

The application was dismissed.

The applicant sought statutory accident benefits for prescription medication expenses following a 2011 motor vehicle accident.

The insurer denied the expenses, arguing they were not reasonable, necessary, or caused by the accident.

The Tribunal found that the accident exacerbated the applicant's pre-existing condition and caused new impairments, including chronic pain syndrome and depression.

Relying on the evidence of the applicant's family physician, the Tribunal concluded that several medications, including Oxycodone and Fentanyl, were reasonable and necessary.

The application was partially granted, and the applicant was awarded entitlement to specific medications along with interest on overdue payments.

The plaintiff was involved in a single-vehicle accident on Highway 417, allegedly caused by an unpaved bump.

He failed to provide the required 10-day statutory notice to the Ministry of Transportation under s. 33(4) of the Public Transportation and Highway Improvement Act, only serving a claim 30 months later.

The defendant moved for summary judgment.

The court found no genuine issue for trial, concluding the plaintiff lacked a reasonable excuse for the delay, particularly after retaining counsel, and failed to rebut the presumption of prejudice caused by the road being repaved before notice was given.

The action was dismissed.

The defendant in a motor vehicle accident action brought a motion to compel the plaintiff to produce the transcript of her examination for discovery from a separate action against her long-term disability insurer.

The plaintiff opposed, relying on the deemed undertaking rule.

The court granted the motion, finding that the transcript was relevant to the plaintiff's injuries and that the exception under Rule 30.1.01(6) applied, allowing the transcript to be used for the limited purpose of impeaching the plaintiff's testimony.

The defendants sought a nunc pro tunc order to issue a third party claim against a doctor and an unknown individual after the two-year limitation period had expired.

The plaintiffs consented, but the proposed third party doctor opposed the motion.

Applying the framework from CIBC v. Green, the court found that while the defendants met the red-line rule by filing their motion before the deadline, they failed to act diligently in pursuing the claim.

The court dismissed the motion, concluding that the defendants were the authors of their own misfortune and that the proposed third party would be prejudiced by the backdated order.

The plaintiffs sought partial indemnity costs following a six-week jury trial for personal injuries and Family Law Act claims, where a jury awarded damages of $141,500.

The defendant had made a nominal settlement offer of $7.

The court awarded partial indemnity fees of $159,249.90 plus HST and disbursements, rejecting the defendant's argument that costs should be proportionate to the amount recovered, particularly given the nominal settlement offer and the need to encourage genuine settlement efforts.

Following a jury trial for a motor vehicle accident, the court ruled on post-verdict issues including the statutory threshold and deductibles.

The court found the plaintiff met the threshold for permanent serious impairment due to a somatic symptom disorder.

However, the court held that the increased statutory deductibles enacted in August 2015 applied retrospectively, which reduced the jury's non-pecuniary and Family Law Act damage awards to zero.

After applying set-offs for statutory accident benefits, judgment was issued for the plaintiffs in the amount of $56,294.98.